Lennon v TNT Australia Pty Ltd - [2013] NSWCA 77

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lennon v TNT Australia Pty Ltd [2013] NSWCA 77
Hearing dates: 8 April 2013
Decision date: 18 April 2013
Before: Basten JA at [1];
Macfarlan JA at [45];
Barrett JA at [46]
Decision:
(1) Grant the applicant leave to appeal.
(2) Allow the appeal and set aside the answer to the question given by the President.
(3) Answer the question identified for the Commission's determination as follows:
Q: Whether by operation of s 17(1)(a)(i) of the Workers Compensation Act 1987 (the 1987 Act), the applicant's binaural hearing loss is deemed to have occurred on 30 June 2008 when the employer ceased to be insured under the New South Wales Workers Compensation Acts or on 24 March 2011 when the claim for compensation was made, at which time the employer was insured under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
A: (a) Under s 17(1) of the Workers Compensation Act 1987 (NSW), the applicant's binaural hearing loss was deemed to have happened on the last day before the employer's licence under the Safety, Rehabilitation and Compensation Act 1988 (Cth) came into force, namely 30 June 2008.
(b) If, under the Safety, Rehabilitation and Compensation Act, the applicant's binaural hearing loss was taken to have occurred after the employer's licence under that Act came into force, that Act applied to the applicant's injury, but any liability or obligation of the respondent under the Workers Compensation Act in respect of the injury occurring before the licence came into force was, by virtue of s 108A(7) of the former Act, unaffected.
(c) If, under the Safety, Rehabilitation and Compensation Act, the applicant's binaural hearing loss was taken to have occurred before the employer's licence under that Act came into force, neither that Act nor the licence applied to the applicant's injury.
(4) Order the respondent to pay the applicant's costs in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
CONSTITUTIONAL LAW - whether State Act inoperative because inconsistent with Commonwealth Act - application of Commonwealth Act to be determined in accordance with its terms - scope of operation of Commonwealth Act - construction of s 108A(7) - Constitution, s 109

WORKERS COMPENSATION - Workers Compensation Act 1987 (NSW), s 17(1) - meaning of "employer by whom the worker was employed in an employment to the nature of which the injury was due" - whether employer licensed under the Safety, Rehabilitation and Compensation Act 1988 (Cth) was an "employer" for the purposes of the State Act

WORKERS COMPENSATION - entitlement to compensation - when injury occurred - whether liability of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWCA 77
Decision Date: 18 April 2013

CaseChat Overview and Summary

In *Lennon v TNT Australia Pty Ltd*, the applicant worker appealed to the Court of Appeal of New South Wales against a decision concerning the date of occurrence of his binaural hearing loss for the purposes of workers' compensation. The dispute centred on whether the applicant's injury should be deemed to have occurred on 30 June 2008, when his employer ceased to be insured under New South Wales workers' compensation legislation, or on 24 March 2011, when the claim was made and the employer was insured under the Commonwealth's *Safety, Rehabilitation and Compensation Act 1988* (SRC Act).

The primary legal issues before the Court of Appeal were: first, the construction and application of section 17(1) of the *Workers Compensation Act 1987* (NSW), specifically the meaning of "employer by whom the worker was employed in an employment to the nature of which the injury was due"; and second, the interplay between the NSW Act and the SRC Act, particularly whether the latter rendered the former inoperative due to inconsistency under section 109 of the Commonwealth Constitution, and how section 108A(7) of the SRC Act preserved existing liabilities.

The Court of Appeal reasoned that the application of the SRC Act was determined by its own terms, and that section 108A(7) of the SRC Act was crucial in preserving liabilities and obligations arising under the NSW Act. The Court held that the applicant's binaural hearing loss was deemed to have occurred on the last day before the employer's licence under the SRC Act came into force, which was 30 June 2008. The Court further clarified that if the injury was considered to have occurred after the SRC Act licence came into force, that Act would apply, but any liability under the NSW Act for an injury occurring before the licence commenced would remain unaffected by section 108A(7). Conversely, if the injury was deemed to have occurred before the SRC Act licence, neither the SRC Act nor the licence would apply.

The Court of Appeal granted leave to appeal, allowed the appeal, and set aside the President's answer. The Court provided a detailed answer to the question posed for determination, establishing that the injury occurred on 30 June 2008. The respondent was ordered to pay the applicant's costs.

Orders

Orders of the court

(1) Grant the applicant leave to appeal.

(2) Allow the appeal and set aside the answer to the question given by the President.

(3) Answer the question identified for the Commission's determination as follows:

Q: Whether by operation of s 17(1)(a)(i) of the Workers Compensation Act 1987 (the 1987 Act), the applicant's binaural hearing loss is deemed to have occurred on 30 June 2008 when the employer ceased to be insured under the New South Wales Workers Compensation Acts or on 24 March 2011 when the claim for compensation was made, at which time the employer was insured under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

A: (a) Under s 17(1) of the Workers Compensation Act 1987 (NSW), the applicant's binaural hearing loss was deemed to have happened on the last day before the employer's licence under the Safety, Rehabilitation and Compensation Act 1988 (Cth) came into force, namely 30 June 2008.

(b) If, under the Safety, Rehabilitation and Compensation Act, the applicant's binaural hearing loss was taken to have occurred after the employer's licence under that Act came into force, that Act applied to the applicant's injury, but any liability or obligation of the respondent under the Workers Compensation Act in respect of the injury occurring before the licence came into force was, by virtue of s 108A(7) of the former Act, unaffected.

(c) If, under the Safety, Rehabilitation and Compensation Act, the applicant's binaural hearing loss was taken to have occurred before the employer's licence under that Act came into force, neither that Act nor the licence applied to the applicant's injury.

(4) Order the respondent to pay the applicant's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lennon v TNT Australia Pty Ltd [2013] NSWCA 77
Hearing dates:	8 April 2013
Decision date:	18 April 2013
Before:	Basten JA at [1]; Macfarlan JA at [45]; Barrett JA at [46]
Decision:	(1) Grant the applicant leave to appeal. (2) Allow the appeal and set aside the answer to the question given by the President. (3) Answer the question identified for the Commission's determination as follows: Q: Whether by operation of s 17(1)(a)(i) of the Workers Compensation Act 1987 (the 1987 Act), the applicant's binaural hearing loss is deemed to have occurred on 30 June 2008 when the employer ceased to be insured under the New South Wales Workers Compensation Acts or on 24 March 2011 when the claim for compensation was made, at which time the employer was insured under the Safety, Rehabilitation and Compensation Act 1988 (Cth). A: (a) Under s 17(1) of the Workers Compensation Act 1987 (NSW), the applicant's binaural hearing loss was deemed to have happened on the last day before the employer's licence under the Safety, Rehabilitation and Compensation Act 1988 (Cth) came into force, namely 30 June 2008. (b) If, under the Safety, Rehabilitation and Compensation Act, the applicant's binaural hearing loss was taken to have occurred after the employer's licence under that Act came into force, that Act applied to the applicant's injury, but any liability or obligation of the respondent under the Workers Compensation Act in respect of the injury occurring before the licence came into force was, by virtue of s 108A(7) of the former Act, unaffected. (c) If, under the Safety, Rehabilitation and Compensation Act, the applicant's binaural hearing loss was taken to have occurred before the employer's licence under that Act came into force, neither that Act nor the licence applied to the applicant's injury. (4) Order the respondent to pay the applicant's costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	CONSTITUTIONAL LAW - whether State Act inoperative because inconsistent with Commonwealth Act - application of Commonwealth Act to be determined in accordance with its terms - scope of operation of Commonwealth Act - construction of s 108A(7) - Constitution, s 109 WORKERS COMPENSATION - Workers Compensation Act 1987 (NSW), s 17(1) - meaning of "employer by whom the worker was employed in an employment to the nature of which the injury was due" - whether employer licensed under the Safety, Rehabilitation and Compensation Act 1988 (Cth) was an "employer" for the purposes of the State Act WORKERS COMPENSATION - entitlement to compensation - when injury occurred - whether liability of…